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Court OKs public broadcasting ad ban

By Byron Tau

12/02/13 01:38 PM EST

A federal appeals court has upheld the longstanding prohibition on political campaigns and corporations advertising on public television.

In an 8-3 decision handed down Monday, the U.S. Court of Appeals for the 9th Circuit found that that the law banning such advertisements along with so-called issue advertising is constitutional and consistent with the First Amendment.

"Congress’s determination that all three kinds of advertising posed a significant threat to public programming is supported by substantial evidence," the majority ruled in the decision (posted here).

The plaintiff "does not point to any evidence indicating that issue and political advertising are less likely to result in commercialization than corporate goods and services advertising," Judge Margaret McKeown wrote for the majority of the 11-judge en banc panel.

The case came about after the Federal Communications Commission fined the nonprofit Minority Television Project for running paid broadcast ads.

Minority Television — which operates the public television station KMTP — sued on First Amendment grounds, arguing for both the right to run corporate ads as well as paid political ads.

In their brief, Minority Television cited the landmark 2010 Supreme Court decision Citizens United v. Citizens United v. Federal Election Commission as precedent protecting political speech for broadcasters.

The appeals court judges disagreed, with McKeown writing: "Citizens United was not about broadcast regulation; it was about the validity of a statute banning political speech by corporations."

Two judges dissented from the majority opinion in its entirety, with a third voting to accept the ban on corporate advertisements but not political ones.

"The First Amendment isn’t self-executing; it depends on the vigilance of judges in scrutinizing the multitude of prohibitions, restrictions, burdens and filters that government—federal, state and local—constantly seeks to impose on speech and the press. The essence of First Amendment vigilance is skepticism, not deference," Chief Judge Alex Kozinski wrote in a dissent joined by Judge John Noonan.

Kozinski's dissent also explicitly attacks a famous Supreme Court precedent, Red Lion v. FCC, a 1969 ruling which upheld the constitutionality of the Fairness Doctrine requiring broadcasters to provide equal time to various sides in issues of public controversy.

"To the extent Red Lion was justified by the state of technology at the time it was written, it’s certainly not justified by the state of technology today. The bottlenecks and monopolies that existed in the field of mass communications when Red Lion was decided no longer exist," Kozinski wrote. "We shouldn’t turn a blind eye to the vast technological changes in the field of mass communications that make broadcasting less significant and pervasive every day. We not only have the right, but also the constitutional duty, to brush aside a precedent—venerable though it may be—when its rationale has been hollowed out as if by termites."